Running on Empathy

President Obama has unveiled his first pick for a lifetime appointment to the Supreme Court. While we are all caught up in the empathy, let us try a thought experiment. Perhaps it will raise our consciousness and add to our understanding.

Imagine the president nominated someone who helped bury the racial discrimination claims of 20 firefighters who say their city government tossed aside their promotional exam test results solely because they had the wrong color of skin. Imagine that a colleague of this judge -- a Hispanic jurist appointed by Bill Clinton -- found this decision a little mystifying.

Arguing for en banc and Supreme Court review of the above case, Jose Cabranes wrote, "this case presents a straight-forward question: May a municipal employer disregard the results of a qualifying examination, which was carefully constructed to ensure race-neutrality, on the ground that the results of that examination yielded too many qualified applicants of one race and not enough of another?"

Imagine further that the nominee in question had suggested that Hispanic women are hardwired, due to "inherent physiological or cultural differences," to perform differently as judges than white men. In fact, the nominee expected people of one race and gender to "more often than not reach a better conclusion" than people of the other race and gender.

National Journal legal columnist Stuart Taylor imagined a nominee like Samuel Alito going on about how "our gender and national origins may and will make a difference in our judging" and ultimately reached a conclusion that doesn't require much imagination: "Any prominent white male would be instantly and properly banished from polite society as a racist and a sexist for making an analogous claim of ethnic and gender superiority or inferiority."

That is the only part of our little thought experiment that was hypothetical. The rest we don't have to imagine: it actually applies to Judge Sonia Sotomayor, President Obama's choice for the highest court in the land. Unlike the "more often than not" inferior judges and a majority of the passed-over firefighters, Sotomayor is not a white male, prominent or otherwise. That's where Taylor's analogy breaks down.

Fortunately for Sotomayor, she did not share her thoughts about what kind of people have the "inherent physiological or cultural" advantages to be better judges with an audience of avowed racists and sexists. Instead she did so at a "cultural diversity lecture" on the campus of Berkeley.

Even better for Sotomayor, she did not fail to show empathy for the alleged victims of a racial discrimination claim supported by the civil-rights lobby. She gave a cold shoulder to people who advance the kind of discrimination claim that lobby usually opposes.

That means Sotomayor can probably get away with saying,"I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life." In fact, the president empathizes with such claims at least to this extent: he chose Sotomayor because he wanted to diversify the Court and reach better conclusions, from his perspective, on the issues of the day.

Although she says she is not "promoting it" or "advocating it," Sotomayor believes the Court of Appeals on which she serves -- and the Supreme Court -- is "where policy is made." She promised to remember the "real-world consequences" of her decisions if confirmed. This is a confusion about the role of the judicial and legislative branches of government that is shared by President Obama, who believes "what is in a judge's heart" should be a major concern and complained that Chief Justice John Roberts "has far more often used his formidable skills on behalf of the strong in opposition to the weak."

Notice that protecting the weak from the strong does not extend to the New Haven firefighter who is protesting the promotion decisions of his own employer and government. Or the small business owner threatened by eminent domain or burdened by high taxes. Or the child in the womb in opposition to the abortionist. Obama does mean using raw judicial power to pick winners and losers, however. Empathy is simply a code word for liberalism, diversity an excuse for identity politics, and the courts are just engaged in policymaking by other means.

Sonia Sotomayor is likely to be confirmed. She has an impressive biography. She has won support -- and her first federal judicial nomination -- from Republicans in the past. Despite her high reversal rate, her rhetorical assaults on judicial impartiality do not reflect the entirety of her record as a judge. Unless the unexpected occurs, Senate Republicans lack the means and probably the will to oppose her effectively.

But how about a little empathy for the rule of law?

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